Broadcasters petition Supreme Court in Aereo fight

Over-the-air television networks rankled by Aereo's service are asking the US Supreme Court to weigh in, saying courts have drawn conflicting conclusions and the service threatens the broadcast industry.

Joan E. Solsman Former Senior Reporter
Joan E. Solsman was CNET's senior media reporter, covering the intersection of entertainment and technology. She's reported from locations spanning from Disneyland to Serbian refugee camps, and she previously wrote for Dow Jones Newswires and The Wall Street Journal. She bikes to get almost everywhere and has been doored only once.
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Joan E. Solsman
3 min read
An array of Aereo antennae
Aereo's arrays of dime-sized antennae. Aereo

Television broadcasters Friday petitioned the US Supreme Court to get involved in their fight against Aereo, the online service that streams their over-the-air programming to its paying members.

Aereo, which is backed by IAC Chairman Barry Diller, uses tiny individual antennas to let consumers watch live, local broadcasts on some Internet-connected devices and store shows in a cloud-based DVR. Television giants including Disney's ABC, CBS (the parent of CNET), Fox, and Comcast's NBCUniversal sued Aereo, alleging that the service violates their copyrights and that Aereo must pay them.

In the petition Friday, the broadcasters asked the court to decide whether the performance of their copyrighted programming via Aereo is "public" and therefore prohibited by the copyright law, or if Aereo is engaged in tens of thousands of "private" performances to paying strangers, as the online company has argued successfully.

The Supreme Court should review the case, the broadcasters argue in the petition, because courts outside the Second Circuit based in New York have been shutting down similar services, setting up court conflict. The petition also argued that the Second Circuit decision in Aereo's favor is rapidly and deeply harming the television industry.

"The decision below has far-reaching adverse consequences for the broadcast television industry, making the need for this Court's review urgent and acute," said the petition. Adding that "while conduct like Aereo's is being enjoined throughout the rest of the country, it is allowed to flourish in the largest national market."

"Inside the Second Circuit, technical detail trumps common sense," said the petition.

Aereo spokeswoman Virginia Lam said, "We will respond, as appropriate, in due course."

A Fox spokesman said the filing Friday underscores the company's resolve. "Make no mistake, Aereo is stealing our broadcast signal. As do so many businesses both large and small, broadcasters rely on enforcement of the law to receive fair value for the high quality news, sports and entertainment we create and in turn deliver to millions of Americans each day," he said.

NBC and CBS declined to comment, and ABC didn't immediately respond to a message.

All petitions to the Supreme Court have a long shot of being granted. Of the roughly 10,000 petitions received every year, the court grants and hears oral arguments for about 75 to 80, less than one percent.

The court tends to select cases that lower courts have ruled on in different ways or those that address issues of national importance.

Thus far, Aereo has largely come out ahead in two district and one circuit court battle, and all of the decisions have been rulings on injunctions, rather than any rulings after a main trial. In addition, the case that Aereo has relied on as precedent -- a 2008 Cablevision case over copyright and DVR technology -- was appealed to the Supreme Court too, and the court denied the petition. Those could work against broadcasters' chances of being granted a Supreme Court review.

However, broadcasters have been successful in shutting down a similar service run by a different company, FilmOn X, with injunctions in Los Angeles and D.C. courts. The Ninth Circuit, if it affirms the Los Angeles decision, could set up a conflicting circuit court decision that makes a Supreme Court hearing more likely.

Aereo has said in the past that there has been no legal discovery conducted that even confirms its own technology is akin to FilmOn X's.

In April, Aereo prevailed in the Second Circuit Court of Appeals, which affirmed a New York-based district court's decision to deny a preliminary injunction motion from television networks that would have prevented Aereo from transmitting the broadcasts to its subscribers.

The networks followed up by requesting the case be reheard before a full panel of judges, which was also denied in July by the majority. However, a dissenting opinion signed by two judges called Aereo a "sham."

Earlier this week, a judge in US District Court in Massachusetts denied a preliminary injunction against Aereo sought by Hearst and its Boston broadcast TV station, WCVB.

Aereo also faces another suit filed in Utah. CBS and "My TV" affiliates owned by Sinclair Broadcast Group as well as a Fox station filed their complaint last week.

Update, 1:11 p.m. PT: Adds details from the petition and Fox comment.